THE  COURT  OF  AIIBJTIUTION 


ITS  ADVANTAGES  AND  IMPORTANCE  TO  BUSINESS  MEN. 


Ai\  ADDRESS  OX  THE  SUBJECT, 


DELrVEKED  BY 


ELLIOTT     F.    SELEI*-A.m:>,    Esq., 

BEFORE  THE  CHAMBER  OF  COMMERCE,  OCTOBER  7tu,  1875. 

ALSO, 

REMARKS       .. 


INFLUENCE  OF  MERCHANTS,  AND   THE   IMPORTANX'E   TO   THEIR 

INTEREST  OF  A  COMMERCIAL  COCRT  UNTRAMMELLED 

BY  VEXATIOUS   FORMS  AND  DELAYS, 


E.   L.    EA-iSrCHER,   EL.   E. 


PRESS  OF  THE  CUAMBER  OP  COMMERCE. 
1875. 


THE  COURT  OF  ARBITRATION: 


ITS  ADVANTAGES  AND  IMPORTANCE  TO  BUSINESS  MEN. 


AN  ADDRESS  ON  THE  SUBJECT, 

DELIVERED  BY 

ELLIOTT     F.    SHEFA.RD,    Esq., 

BEFORE  THE  CHAMBER  OF  COMMERCE,  OCTOBER  7th,  1875. 

ALSO,  :    : ..    . 


REMARKS'- ':,  \  '  \r'.'',  :•.  1 1 :  ;. 


ON  THE 


INFLUENCE  OP  MERCHANTS,   AND   THE   IMPORTANCE   TO   THEIR 
INTEREST  OF  A  COMMERCIAL  COURT  UNTRAMMELLED 

BY  VEXATIOUS   FORMS  AND  DELAYS, 


BT 


E.   L.    EA.NCHER,  LL.  D. 


PRESS    OP    THE    CHAMBER    OF    COMMERCE. 
1875. 


.fVRlNTED.  Fp^  GEIfEEAL 


DISTEIBUTIOK    BY    THE    ORDER    OF 
THE   CHAMBER. 


JOHN     W.     AMBBMAN,     PRINTEB, 
No.  4T  Cedar  StrMt,  N.  Y. 


^miti  if  Htllttatbit. 


address  by  elliott  f.  shepard,  esq. 

Mr.  Presidext,  and  Gentlemen  of  the  Chamber  of  Com- 
iiERCB  :  In  response  to  your  invitation  to  address  the  merchants 
and  business  men  of  this  city  in  relation  to  "  the  Court  of  Arbitra- 
*'  tion,  and  the  methods  by  Avhich  disputed  questions  can  be  brought 
*'  before  the  court  for  adjudication,"  I  have  the  honor  to  submit  a 
few  words.  I   '.  .   . 

The  court  is  the  offspring  of  the  commerce  (Jf.*tnJ<i  por€,  and'ug. 
facilities  for  a  summary  settlement  of  disputes  ^;\y  be  a,v;iil,ed^  of  oy 
every  merchant,  and  indeed  by  every  residerii'o'ftUe.gi.'^at  ^ii-le^V^ : 
New- York,  Brooklyn,  Jersey  City,  Newburg  and  Albany,  as  well 
as  of  any  other  part  of  the  collection  district  of  this  port,  upon  all 
commercial  and  mercantile  questions. 

The  members  of  this  Chamber  may  cite  one  another  before  this 
court,  upon  a  notice  of  not  less  than  two  days  nor  more  than  five 
days ;  and  both  they  and  all  other  parties  have  the  right  to  name 
additional  arbitrators  to  sit  with  the  official  Arbitrator,  if  they  so 
elect. 

If  they  so  elect,  then  the  case  will  go  on  before  a  Board  of  Three ; 
if  they  do  not  so  elect,  then  it  will  go  on  before  the  official  Arbitrator 
as  sole  judge. 

The  provisions  for  the  correction  of  any  errors  which  may  creep 
into  the  decisions  is  ample  and  simple.  The  parties  may  have  a 
rehearing  before  the  same,  or  a  new  Board  of  Arbitration — in  either 
case  the  judge  continuing  to  serve — which  amounts  to  a  review  by 
appeal,  and  is  all  that  can  be  desired. 

The  case  of  Becker  vs.  The  General  Insurance  Co.  of  Dresden 
is  an  illustration  of  this  principle. 

679939 


In  that  case,  owing  to  good  cause  shown,  a  new  trial  was  had 
before  the  Arbitrator,  and  the  first  judgment  reversed.  To  the 
correctness  of  the  second  judgment  even  the  defeated  party  was  a 
convert — and  the  decision  has  the  felicity  of  carrying  the  convictions 
of  both  parties. 

These  new  trials  may  be  had,  upon  the  grounds  of  error  at  the 
first  one,  of  newly  discovered  evidence,  of  a  deficiency  of  evidence, 
or  for  any  reason  that  would  commend  itself  to  any  intelligent 
merchant. 

But  this  court  possesses  a  greater  guaranty  against  the  commis- 
sion of  errors  than  any  other  court  in  the  State,  growing  out  of  its 
being  endowed  with  the  wise,  comprehensive  and  safe  poAver,  upon 
its  own  motion,  and  notice  to  both  the  adverse  parties,  of  taking 
additional  testimony,  when  it  may  be  necessary  to  enable  justice  to 
be  done.  Especially  is  this  valuable  in  cases  where  expert  and 
scientific  testimony  is  required. 

It  not  infrequently  appears  in  the  trial  of  causes  at  law,  that  the 
court  is  embarrassed  by  the  insufficiency  of  evidence,  which  the 
parties,  left  to  themselves,  bring  before  it.  Some  point  is  left  ob- 
scure, some  fact  is  not  explained,  some  matter  is  unsettled ;  and 
lawyers  are  often,  sjirprised  to  find  that  a  judge  makes  the  case  to 
^tui'.n  updn.'qnpe.'ipf  these  very  points,  the  importance  of  which  had 
■bfer^n  lost  siglit  of  in  c\A^er  issues,  and  about  which  they  might  have 
giVen'olher.  ^nd'.  fur.tl\sV  evidence  which  was  in  their  control,  which 
would  have  carried  the  decision  the  other  way.  But  after  the  deci- 
sion, it  is  too  late ;  the  trial  is  ended.  The  evidence  might  have 
been  produced,  but  was  not,  and  the  party  is  concluded. 

Such  complaints  as  that  is  the  case  of  Schenck  vs.  Andrews,  57 
JV.  Y.  Reports,  148,  cannot  arise  in  the  Court  of  Arbitration.  In 
that  case  the  court  of  last  resort  find  themselves  embarrassed  by  the 
fact,  that  "  an  inspection  of  the  record  shows  that  it  had  been  very 
loosely  tried."  The  Court  of  Arbitration,  on  the  other  hand,  is 
bound  to  acquire  all  the  facts,  and  to  bring  in  of  its  own  motion  all 
the  evidence,  if  any  should  inadvertently  be  omitted  by  the  parties 
themselves. 

The  merchant  may  fearlessly  come  into  this  court  without  a  law- 
yer; for  the  upright,  able  and  experienced  jurist  who  presides  in  it 
will  not  allow  any  advantage  to  be  taken  of  him.  His  ignorance  of 
his  own  rights  will  not  cause  him  to  fail  of  justice.  The  ingenuity 
of  his  adversary  cannot  defeat  him  if  the  right  be  on  his  side. 

The  judge  is  to  do  equity  between  the  parties,  and  not  merely  to 
decide  a  case  as  the  parties  leave  it,  if  it  is  evident   that  either 


5 

of  them  has  fallen  into  error  or  mistake  which  ought  to  be  avoided 
or  corrected. 

The  case  of  Macfarlajtd  &  Co.  vs.  R.  &  C,  Dkgener  is  in  point. 
Tliere  the  plaintiff  and  defendant  came  togetlier  before  the  Arbitra- 
tor, and  orally  submitted  their  cause.  The  plaintiff  said  the  defend- 
ant owed  him  $1,202  89.  The  defendant  denied  his  liability,  but 
said  he  should  pay  at  once  if  the  case  went  against  him.  This  he 
had  the  pleasure  of  doing,  as  the  Arbitrator  clearly  perceived,  and 
decided  that  he  was  liable.  This  he  actuall)'^  did  in  about  half  an 
hour  after  entering  the  court  room. 

The  practice  in  the  courts  of  law  make  such  a  case  impossible  of 
occurrence  in  them.  Such  a  case  seems  to  carry  the  administration 
of  justice  back  to  its  pristine  glory  in  the  patriarchal  times,  when 
the  head  of  the  tribe  sat  in  the  gate  of  the  city  and  dispensed  justice, 
himself  protecting  the  weak  and  defending  the  ignorant. 

Other  great  advantages  to  the  merchant  in  this  Court  of  Arbitra- 
tion are ;  that  the  trials  are  to  be  immediate ;  neither  party  is  to  be 
punished  in  costs  for  endeavoring  to  settle  their  rights ;  the  atten- 
tion of  the  court  will  be  confined  exclusively  to  purely  business 
matters ;  it  is  located  down  town,  in  the  most  convenient  spot  for 
commerce ;  it  can  construe  and  interpret  contracts,  bills  of  lading, 
charter-parties,  all  Avritten  instruments  and  verbal  agreements,  even 
in  advance  of  their  execution ;  it  can  detei'mine  the  rights  and  lia- 
bilities of  the  parties  under  them  after  execution ;  and  it  does  all 
this  in  the  speediest  and  most  economical  manner.  Nothing  to  be 
compared  with  the  costlessness  and  celerity  of  its  adjudications  can 
be  found  anywhere  else  in  this  State  or  the  United  States. 

The  submission  of  causes  may  be  made  orally  by  the  parties,  if 
they  jirefer  that  method,  thus  saving  time  and  expense ;  and  in  such 
oral  submissions  the  parties  may  rely  upon  it,  that  the  Arbitrator 
Avill  be  at  as  much  pains  to  draw  out  all  the  evidence  and  devclope 
the  facts,  and  then  to  apply  the  correct  principles  in  deciding  it,  as 
they  could  desire  or  their  own  counsel  exhibit. 

A  sample  of  his  fidelity  in  this  regard  may  be  found  in  a  late  case, 
where  the  defendant  was  awarded  damages  for  $36,000,  although  at 
the  outset  the  plaintiff  made  a  large  claim. 

I  shall  not  be  understood  as  advising  merchants  generally  to  dis- 
pense with  the  services  of  counsel,  in  conducting  what  would  ordi- 
narily be  lawsuits,  before  this  tribunal.  I  have  too  much  experi- 
ence of  the  value  of  learned  and  skillful  counsel  in  all  the  important 
afiairs  of  life,  to  make  such  a  suggestion.  But  I  do  say,  tliat  in 
many  a  case  of  a  dispute  about  a  bargain  between  merchants,  they 


6 

are  perfectly  competent  to  have  it  settled  by  the  Arbitrator  without 
any  further  legal  assistance  than  such  as  he  will  afford  to  both 
parties. 

Every  day  there  are  witnessed  misunderstandings  on  'Change,  at 
the  Stock  Board,  in  bankers'  offices,  in  merchants'  counting-rooms, 
which  might  be  settled  by  a  reference  to  the  Arbitrator,  who  is 
always  accessible  at  this  Chamber,  in  the  course  of  a  few  minutes. 

The  facility  for  snch  settlements  and  adjustments,  furnished  by 
this  court,  is  far  greater  than  that  of  the  Arbitration  Committees 
of  the  different  boards,  associations  or  exchanges.  In  them,  a  com- 
mittee of  different  persons,  who  have  other  business  to  attend  to, 
has  to  be  notified  and  assembled,  often  at  great  inconvenience,  and 
after  worrying  delays.  Here  the  Arbitrator  holds  court  continu- 
ally, with  no  other  business  to  interfere  with  his  duties. 

The  committees  are  changing  and  shifting — the  Arbitrator  is 
appointed  for  life. 

The  committees  establish  no  precedents,  leave  no  permanent 
benefits  behind  them,  often  are  controlled  by  business  interests  of 
their  own  which  may  be  affected  by  their  decision,  and  may  vary 
the  principles  on  which  a  case  is  to  be  decided  with  every  wind  of 
opinion,  and  every  new  election  of  committees. 

The  capacity  of  this  tribunal  for  business  may  be  measured  by 
the  amount  of  business  done  in  the  year  1869,  by  the  somewhat 
similar  tribunal  in  Paris,  known  as  the  "  Tribunal  de  Commerce.^'' 

In  that  year  the  number  of  new  cases  brought  were 6 8,75 1 

Remaining  on  the  calendar  from  the  preceding  year, 1,012 

Total, 69,763 


Of  which  38,610  were  settled  by  default. 
17,182     "  "       after  triah 

5,035     "      withdrawn. 
7,751     "      amicably  settled. 
1,185  went  to  the  next  year's  calendar. 


Total,  .  .  69,763  cases. 

As  there  is  no  provision  for  a  re-hearing  in  that  tribunal,  one 
appeal  is  allowed,  and  of  the  few  cases  appealed,  more  than  three 
times  as  many  were  affirmed  as  were  reversed.  Showing  how 
satisfactorily  the  tribunal  is  found  to  work. 


In  cases  of  strikes  by  operatives  in  factories,  mines  and  shops,  the 
services  of  this  Court  of  Arbitration  will  be  found  of  incalculable 
advantage  both  to  the  employers  and  the  employees,  if  they  will 
unite  in  bringing  their  matters  before  it.  In  such  a  case,  the  mas- 
ters could  select  one  arbitrator,  the  employees  another,  while  the 
disinterested,  fair-minded  judge  would  place  his  wisdom  and  learn- 
ing at  the  service  of  both  parties.  The  result  of  such  an  arbi- 
tration would  produce,  by  the  simple  operation  of  this  commercial 
court,  the  same  happy  effects  which  Mr.  Mundella,  M.  P.,  suc- 
ceeded in  bringing  about  at  Sheffield  in  the  cutlery  trade,  by  the 
cumbersome  machinery  of  the  Arbitration  Board. 

Yet  the  success  of  that  scheme  was  so  great  a  benefaction  both 
to  capital  and  labor,  that  they  sent  for  Mr.  Mondella  from  dif- 
ferent parts  of  England,  to  visit  other  cities,  and  organize  similar 
Boards. 

The  legislature  of  the  leading  State  of  the  Union  has  wisely  pro- 
vided a  facility  for  reaching  the  same  results,  with  less  trouble, 
expense  and  delay ;  and  as  the  proprietors  or  agents  of  factories 
and  mines  at  Fall  River,  Mauch  Chunk  and  other  places,  reside  or 
do  business  in  this  city,  they  are  entitled  to  avail  themselves  of  the 
services  of  this  Court  of  Arbitration  in  the  settlement  of  disputes 
about  wages  and  hours  of  work. 

The  possibilities  of  this  court  are  not  yet  all  of  them  developed, 
as  it  is  still  in  its  infancy ;  but  enough  has  been  done,  and  enough 
can  be  seen,  to  demonstrate  its  usefulness  and  success. 


Remarks  of  Hon.  E.  L.  Fane  her  on  the  Importance  to  Merchants  of  a 
Commercial  Court  Unembarrassed  by  Forms  and  Delays. 

The  Court  of  Arbitration  is  an  institution  adapted  to  the  spirit 
of  the  age,  and  it  is  required  by  the  necessities  of  commerce.  Judi- 
cial tribunals  have  been  established  Tor  the  purpose  of  ascertaining 
the  truth  in  the  disputes  of  parties,  and  also  for  the  purpose  of 
administering  justice  between  them.  Although  such  is  the  benign 
intention  of  their  maintenance,  it  is,  nevertheless,  true  that  the 
results  of  litigation  have  very  largely  depended  upon  the  skill  and 
technicality  that  prevail  in  forensic  contests,  and  such  results  have 
not  infrequently  been  hostile  to  the  true  principles  of  justice. 

It  has  been  charged  that  the  technical  subtleties  of  raedifeval 
times  have  never  been  eradicated  from  the  principles  of  legal  pro- 
cedure ;  and  that  all  attempted  reforms  are  only  patches  on  the  old 
garment.  It  cannot  be  denied  that  traditional  uncertainty  and  per- 
plexity have  attended  the  steps  of  judicial  procedure ;  and  that  the 
favored  hour  of  a  perfect  administration  of  justice  must  be  referred 
to  the  future.  It  is  doubtful  if  the  administrative  machinery  of  the 
legal  department  of  our  government  has  kept  pace  with  the  improve- 
ments of  other  departments  in  social  and  political  life.  Perhaps  we 
must  go  far  back  to  discover  the  origin  of  the  difficulty. 

We  learn  from  history  that  some  of  the  governments  of  civilized 
Europe  were  for  centuries  regulated  according  to  principles  of  feudal 
origin.  Such  rules  not  only  determined  the  political  character  of 
several  European  monarchies,  but  they  formed  the  basis  of  their 
systems  of  jurisprudence.  Feudal  relations  supplied  the  place  of 
other  government,  and  out  of  them  grew  corresponding  duties  and 
peculiar  institutions.  Baronial  courts  and  forums  of  the  hundred 
were  the  chief  judicial  tribunals  in  England.  Ancient  customs ;  the 
alliance  of  lord  and  vassal ;  the  impulses  of  chivalry ;  tlie  spirit  of 
the  age  and  the  sanctions  of  religion  were  all  employed  to  strengthen 
the  ties  of  the  feudal  connection  and  to  uphold  the  peculiar  institu- 
tions. France,  Germany,  Normandy  and  England  came  alike  under 
the  sway  of  the  feudal  principle.  The  famous  question  seems  to  be 
unsettled  whether  feudal  tenures  were  known  in  England  before  the 
conquest.  If  the  system  was  introduced  no  earlier  than  by  the 
Norman  adventurers,  it  maintained  its  great  and  general  power  for 
six  centuries,  and  more,  during  which  feudal  subjection  trained  the 
growing  nation  to  the  peculiarities  of  feudal  usages  and  laws. 

With  the  increase  of  population  after  the  lapse  of  several  centu- 
ries the  progress  of  education  and  the  power  of  jiublic  opinion  grad- 


9 

ually  softened  the  haraher  features  of  the  feudal  system ;  but  from 
it  have  sprung  the  impress  of  English  national  character ;  much  of 
their  modes  of  thought,  many  of  their  peculiar  laws,  their  baronial 
privileges  and  their  feudatory  principles  of  justice  and  government. 

Education  and  enlightened  public  opinion  have  continued  to  make 
inroads  on  the  primary  power  of  feudalism.  Yet  its  spirit  and  in- 
fluence have  never  quite  forsaken  the  institutions  of  the  law. 

In  other  departments  of  social  and  political  life  the  world  entered 
upon  a  new  epoch  in  the  sixteenth  century,  when  the  business  of 
merchants  produced  results  of  the  greatest  importance. 

Commercial  interests  began  to  be  prominent  in  European  affairs. 
The  ocean  route  to  India  by  the  Cape  of  Good  Hope  had  been  discov- 
ered, and  the  merchants,  by  means  of  it,  turned  away  fi-om  its  ancient 
marts  in  Western  Asia  the  East  India  trade.  The  cities  of  Italy 
were  also  passed  by,  and  the  current  of  trade  set  upon  the  shores  of 
Western  Europe.  At  first,  Portugal,  by  her  maritime  adventure 
and  enterprise,  became  the  centre  of  this  enriching  traffic,  and  Lis- 
bon rose  to  be  the  great  emporium  of  Europe.  The  Dutch  also 
afterward  gained  important  portions  of  the  East  India  possessions, 
and  they  rapidly  amassed  immense  wealth  by  the  new-found  trade, 
80  that  Amsterdam  and  Antwerp  became  great  marts  of  commerce. 

But  Great  Britain  set  up  her  manufactories,  and  compelled  her 
colonies  to  sell  their  raw  material  to  her.  By  her  trade  policy  and 
advantage  she  soon  reduced  the  power  of  her  Dutch  rival.  When, 
also,  the  commerce  of  Portugal  declined  and  the  Spanish  monarchy 
fell,  Great  Britain  had  only  to  contend  with  France  for  commercial 
ascendancy.  Thenceforth  the  contest  between  those  two  powers 
for  the  supremacy  of  trade  was  carried  on  for  a  hundred  years.  It 
was  understood  by  both  nations  that  the  control  of  superior  manu- 
factories and  of  superior  commerce  was  equivalent  to  the  control  of 
the  wealth  and  power  of  the  world.  When  England  gained  the  ad- 
vantage she  designed,  so  far  as  possible,  to  make  the  earth  one  vast 
plantation,  to  be  worked  for  the  benefit  of  British  looms  and  Britisii 
capital.  When  an  alliance  sprung  up  between  her  and  Fi-ance  they 
were  both  engaged  in  a  heated  contest  for  the  commercial  dominion 
of  the  world.  They  knew  it  to  be  the  certain  source  of  wealth  and 
power,  and  to  involve  as  a  concomitant  the  supremacy  of  the  seas. 
The  great  question  which  convulsed  Europe  and  ended  with  the  fall 
of  the  first  Napoleon,  was  whether  England  or  France  should  be 
the  great  naval  and  commercial  power  of  the  world.  While  they 
were  allied,  the  central  idea  was,  that  united,  they  could  control  the 
world  ;  and  when  they  went  to  war  against  each  other,  it  was  that 


10 

the  victor  raiglit  gather  the  fruits  of  commerce  both  from  the  East 
and  the  West.  There  were,  of  course,  other  questions  involved, 
but  the  dominant  idea  was  the  advantage  of  trade  and  the  power 
of  commerce.  Napoleox  saw  that  if  the  East  India  trade  could  be 
diverted  from  its  route  around  the  stormy  cape,  and  returned  to  its 
ancient  channel  through  the  Red  Sea  to  Egypt,  the  eastern  shores  of 
the  Mediterranean  would  regain  their  former  importance,  and  the 
seat  of  the  world's  wealth  and  dominion  would  be  changed.  It  was 
this  idea  that  impelled  his  expedition  into  Egypt.*  He  said  to  his 
troops  before  disembarking,  "  Soldiers  !  you  are  about  to  undertake 
a  conquest  fraught  with  incalculable  effects  upon  the  commerce  and 
civilization  of  the  world." 

England,  however,  succeeded  in  monopolizing  the  Eastern  trade 
by  conquering  and  colonizing  the  very  countries,  in  the  distant 
Orient,  whence  it  originates.  It  once  poured  into  Europe  by  the 
Black  Sea.  The  Phoenicians,  two  thousand  years  before  the 
Christian  era,  possessed  a  powerful  navy,  and  they  built  cities  and 
established  colonies  on  the  Dardanelles  and  the  shores  of  the  Black 
Sea.  These  all  flourished  on  the  lucrative  trade  of  the  East. 
When  Rome  rose  to  power,  she  contended  for  the  riches  of  the 
Black  Sea  commerce  ;  and,  at  the  demand  of  her  jealous  commercial 
ambition,  the  Euxine  became  a  Roman  lake,  closed  to  the  com- 
merce which  the  open  ports  of  the  eastern  shore  of  the  Mediter- 
ranean invited. 

The  wealth  of  the  remote  Indies  directed  to  Western  Europe, 
built  up  the  enriched  marts  of  Paris  and  London ;  which  could  not 
have  been  done,  in  such  extent  and  magnificence,  had  not  the  stream 
of  trade  been  diverted  from  the  Black  Sea,  the  Mediterranean  and 
the  banks  of  the  Nile. 

When  the  capital  of  Rome  was  removed  from  the  Tiber  to 
the  Hellespont,  Constantinople  rose  to  be  the  foremost  city  of 
the  world.  It  Avas  because  she  formed  a  new  and  advantageous 
centre  for  commercial  trade  between  the  East  and  the  West.  To 
her  markets  came  the  merchants  from  China,  India,  Arabia,  Persia 
and  Europe ;  and  her  advantages  and  magnificence  made  her  a 
queen  without  a  rival. 

It  is  well  known  that,  for  many  years,  Great  Britain  and  Russia 
have  employed  their  sagacity  and  policy  in  pursuit  of  the  great 
purpose  of  controlling  the  trade  and  commerce  of  the  East.  Accord- 
ing to  the  teachings  of  history,  commerce  is  the  great,  unequalled 

•  See  London  Quarterly,  April,  1876,  Vol.  276,  p.  300. 


11 

power.  It  has  waged  war  and  concluded  peace.  It  has  dictated 
treaties  and  made  conquests.  It  has  governed  colonies  and  grasped 
at  dominion  over  the  seas.  It  has  builded  the  great  cities  of  the 
world  and  controlled  the  destinies  of  its  great  nations. 

Political  economy  long  ago  discovered,  that  if  any  country  can 
bring  to  her  mills  the  raw  material,  and,  having  manufactured  it, 
can  resell  it  in  all  markets,  the  tribute  of  her  profits  and  the  freight 
of  her  ships  she  can  exact  from  the  purchasers.  To  the  extent 
that  she  can  attract  to  her  mills  and  machinery  the  products  of  the 
world,  and  can  sell  her  manufactured  fabrics  elsewhere,  she  secures 
the  profits  of  her  labor,  her  looms  and  her  capital.  Other  nations 
may  also  be  made  tributary  to  her  wealth  by  contributing  to  the 
profits  of  her  carrying  trade. 

If  the  discovery  by  the  Portuguese  of  the  new  route  to  India  by 
the  Cape  of  Good  Hope  changed  the  face  of  Europe ;  caused  com- 
merce to  desert  its  ancient  seats  around  the  Mediterranean,  and 
planted  the  centres  of  future  dominion  in  Western  Europe,  whose 
cities  became  the  depots  and  markets  of  the  world,  it  is  not  too 
much  to  ascribe  to  commerce,  and  to  the  capital,  enterprise, 
industry  and  skill,  that  are  its  attendants,  the  power  which,  under 
Providence,  controls  the  destinies  of  nations.  There  are  no  interests 
of  pecuniary  character  which  more  require  the  speedy  administra- 
tion of  the  law,  and  none  that  feel  more  the  defects  in  its  ad- 
ministrative machinery  than  those  of  commerce.  Great  cities  are 
the  world's  memorials  of  achievements  in  trade.  The  City  of  New- 
York  is  a  chronicle  of  commercial  enterprise,  now  being  rapidly 
re-written  in  marble.  Her  shipping,  that  lines  both  sides  of  the 
city,  presents  a  forest  of  masts,  between  countless  warehouses  filled 
with  the  products  of  all  climes,  and  tributary  waves  that  roll  in 
from  every  sea. 

But  in  England  and  the  United  States,  both  of  which  are  coun- 
tries boasting  of  self-government,  the  institutions  of  justice  are  a 
hundred  years  behind  .'the  reforms  in  other  departments.  They 
have  not  kept  pace  with  the  improvements  in  society  nor  with  the 
requirements  of  trade.  The  forms  of  antiquity  have  characterized 
forensic  procedure,  and  darkened  the  temples  of  justice  with  the 
mould  of  the  past,  like  ivy  feeding  on  the  dust  of  an  ancient  ruin. 
Legal  tribunals  have  been  remarkable  for  perpetuating  the  spirit  of 
by-gone  times.  Judicial  quest  has  often  pursued  the  dim  paths  of 
traditionary  precedent.  Old  abuses  have  clung  to  the  methods  of 
legal  procedure  with  unyielding  tenacity.  The  arts  of  technicality 
have  for  ages  veiled  the  weightier  matters  of  the  law  ;  and  the  four 


12 

corners  of  a  special  plea  have  often  proved  insurmountable  barriers 
to  the  free  course  of  justice.  It  was  only  after  a  long  struggle  for 
reform  that  equity  and  common  law  were  permitted  to  intertwine, 
or  were  allowed  to  be  administered  by  the  same  tribunal.  Subtle 
and  dilatory  rules  of  pleading  and  procedure  still  throw  obscuring 
shadows  around  the  forms  of  action,  and  frequently  conceal  from 
view  the  real  merits  of  the  case.  Venerable  as  are  some  of  these 
forms,  it  seems  unreasonable  to  retain  them  after  they  have  ceased 
to  be  useful. 

It  is  shown  how  strong  old  abuses  have  clung  to  legal  systems 
when  we  read  a  statute  of  England,  in  the  time  of  the  Protector, 
for  turning  the  books  of  the  law  and  all  process  and  proceeding  in 
courts  of  justice  into  English,  and  find  that  ten  years  afterward  the 
same  benign  act  was  repealed ;  thus  remanding  the  forms  of  legal 
procedure  to  the  dog-Latin  and  Norman-French  that  before  pre- 
vailed. Such  reti'ogression  necessitated  a  professional  class,  edu- 
cated in  musty  precedents,  who  gained  thereby  claims  to  large  fees, 
for  conducting  legal  controversies  through  quick-sand  channels,  in  a 
manner  every  way  mysterious  to  ordinary  intelligence.  It  required 
a  statute,  both  in  this  country  and  in  England,  to  authorize  a  de- 
fendant to  plead  the  general  issue,  or  a  plaintiff  to  sue  upon  a  bill 
of  exchange  by  common  counts.  These  righteous  means  of  rising 
above  the  snares  of  special  pleading,  and  of  reaching  the  merits  of 
the  case  in  a  simpler  manner  than  before,  according  to  the  truth 
and  the  evidence,  were  not  favorable  to  those  old  notions,  which 
sought  advantages  through  the  intricacies  of  technicality.  It  was 
not  possible,  of  course,  that  the  fruits  of  such  a  system  should  be 
yielded  without  a  struggle.  An  act  of  Parliament  was  passed  to 
prevent  the  stoppage  of  causes  for  irregularity  of  forms,  and  requir- 
ing the  judges  to  give  judgment  *'  according  to  the  very  right  of 
the  cause ;"  but  the  influence  of  the  old  system  still  lingered  in  the 
courts  of  law,  and  the  statute  was  not  powerful  enough  to  overcome 
the  stubborn  authority  of  the  ancient  precedents.  In  New-York, 
the  statute  of  jeofails  was  benignly  intended  to  achieve  a  triumph 
over  the  inveteracy  of  technical  rules  of  pleading  ;  but  it  proved  to 
be  more  beautiful  in  theory  than  useful  in  practice.  It  can  seldom 
break  the  spell  of  a  technical  cobweb,  and  is  an  easy  prey  to  the 
principle  of  stare  decisis. 

When  the  lawyers  of  England  had,  for  another  hundred  years, 
after  the  accession  of  Charles  II.,  imposed  their  unreadable  jar- 
gon on  the  people,  an  act  was  passed  in  1730,  reciting  that  "many 
and  great  mischiefs  do  frequently  happen  to  the  subjects  of  this 


13 

kingdom,  from  the  proceedings  in  courts  of  justice  being  in  an 
unknown  language — those  who  are  summoned  and  impleaded  hav- 
ing no  knowledge  or  understanding  of  what  is  alleged  for  or  against 
them  by  their  lawyers,  who  use  a  character  not  legible  to  any  but 
persons  practicing  the  law ;"  and  then  it  enacted  that  all  proceed- 
ings in  England,  and  in  the  Court  of  Excliequer  in  Scotland,  should 
be  in  English  for  the  future.  Why  should  a  people,  advanced  in 
intelligence  and  science  and  in  all  the  arts  of  civilized  life,  have 
borne  so  long  with  medireval  jargon  in  their  courts  of  justice  and 
with  such  antique  obstacles  in  the  administration  of  law  ? 

So  late  as  1873,  a  long  series  of  attempted  legal  reforms  was  closed 
in  England,  by  an  Act  of  Parliament,  called  the  Judicature  Act. 
Its  advocates  predicted  that  it  suggested  changes  which  would 
make  the  reform  tide,  of  necessity,  pass  by  the  ancient  legal  land- 
marks, and  bear  the  ark  of  the  law  to  a  point  only  dreamed  of  by 
Lord  Brougham,  Sir  Samuel  Romilly,  and  Sir  James  Macintosh. 
But  the  commissioners  appointed  under  the  act  to  inaugurate  the 
reforms,  after  long  labor,  resolved,  that  so  great  a  field  of  inquiry, 
involving  questions  of  state  organization,  and  the  possible  recon- 
struction of  two  large  departments,  other  than  the  legal  department, 
was  beyond  them,  and  beyond  the  intention  of  the  government. 

We  have  been  more  successful  in  the  State  of  New -York  in  at- 
tempts to  improve  the  administrative  machinery  of  the  courts ; 
but  our  practice  still  composes  such  a  system  of  formality  and  of 
technical  procedure,  that  only  adepts  in  the  knowledge  of  the 
science  can  pretend  to  comprehend  it.  The  "  Nestor"  of  the  Bar, 
after  years  of  endeavor  to  bring  a  public  peculator  to  justice,  is  lia- 
ble to  have  his  studied  pleading  and  his  chosen  form  of  action  over- 
turned by  the  court  of  last  resort,  because  not  conformable  to  canon- 
ized precedent.  The  lance  that  has  pierced  the  armor  of  many  a 
valiant  knight  is  shivered  against  the  trunk  of  antique  method. 

The  system  of  reaching  the  doors  of  justice  should  not  be  a  re- 
condite procedure.  The  merchants  of  New-York  have  done  well  to 
determine  that  it  shall  not  be,  so  far  as  they  are  concerned.  Let  the 
infatuated  advocates  of  old  forms  say  what  they  please,  it  is  mani- 
fest they  are  not  adapted  to  the  progress  and  exigencies  of  com- 
merce. By  the  aid  of  the  Chamber  of  Commerce,  and  by  the  con- 
sent of  the  Legislature  and  Governor  of  the  State,  the  Court  of  Ar- 
bitration is  now  established  on  a  solid  and  permanent  basis.  In  that 
court  technicalities  are  not  observed,  and  such  forms  of  procedure 
prevail  as  are  understood  by  every  suitor,  and  as  conform  to  com- 
mon sense.     It  may  be  said  of  the  merchants  who  have  thus  estab- 


u 

lislied  tlieir  commercial  court,  such  practical  reformers  stand  above 
the  rest  of  men  ;  and  they  uphold  the  true  principles  of  reform  with 
e;iliglitened  judgment  and  with  watchful  discretion.  They  are  the 
instrumentality  by  wliich  the  si^ell  of  old  abuses  is  broken,  that  the 
wheels  of  progress  may  move  onward  to  work  out  beneficial  achieve- 
ments for  mankind.  They  liave  taken  steps  in  advance,  which 
disdain  the  old  walks  of  tradition,  and  move  over  new  pathways 
of  usefulness,  in  keeping  with  tlie  spirit  that  has  ever  characterized 
the  enterprise  of  sagacious  merchants.  The  movement  they  have 
thu^  inaugurated  is  inspired  with  tlie  idea  that  the  judicial  admin- 
istrative machinery  should  revolve  around  a  standard  of  right- 
eousness and  truth,  where  the  merits  of  a  controversy  shall  for 
ever  triumph  over  technical  embarrassments  and  mysterious  pre- 
cedents. 

It  is  a  mistake  to  suppose  that  the  intricacies  of  legal  procedure 
are  necessarily  so  mysterious  that  it  is  hopeless  for  the  lay  world  to 
struggle  against  them.  The  great  difficulty  of  reform  in  forensic 
pi'ocedure  is  not  so  much  in  the  nature  of  the  subject  as  in  the  pub- 
lic apathy  respecting  it,.  There  is  no  reason  but  public  indiiference 
why  a  sj^stem  of  ingenious  pitfalls  should  have  been  so  long  regarded 
as  irremediable.  The  law,  to  be  a  useful  science,  should  be  readily 
available  to  all  who  have  occasion  to  resort  to  it.  It  should  be  just 
and  certain,  and  adapted  to  the  varying  exigencies  of  human  affairs. 
It  should  not  be  embarrassed  with  vexatious  delays  or  ruinous  ex- 
penses. There  is  no  well-grounded  complaint  that  the  laws  of  this 
free  land,  so  far  as  they  are  the  rules  for  civil  conduct,  are  not  just 
and  certain.  The  miscarriage  of  justice  is  not  due  to  the  imperfection 
or  uncertainty  of  the  law.  The  difficulties  are  connected  with  its 
administrative  machinery.  Delays,  technicalities  and  expenses  are 
the  crying  evils  so  much  deprecated. 

It  would  seem  to  be  theoretically  possible  to  remove  these  im- 
peachments from  the  administration  of  the  law  ;  but  it  has  practi- 
cally been  found  impossible  in  the  ordinary  courts.  Attempts  have 
been  made  to  reduce  the  evils  just  mentioned  to  the  smallest  possi- 
ble dimensions,  but  they  are  still  formidable  in  the  pathway  of 
justice.  Every  layman  knows  that  when  a  quarrel  has  ripened  into 
a  lawsuit,  it  has  not  only  become  involved  in  a  web  of  mystery 
that  none  but  experts  can  unravel,  but,  also,  that  in  proportion  to 
its  magnitude,  will  be  the  plethoric  bills  of  expense  attending  tlie 
contest ;  while  the  day  in  the  distant  future,  when  its  final  deter- 
mination will  be  announced,  is  beyond  the  vision  of  the  most  far- 
seeing  prophet  to  discern.     Many  a  litigant  with  a  just  cause  has 


15 

been  disheartened  by  these  perplexities,  and  to  such  wind-mill  evo- 
lutions of  forms  and  tardiness  are  to  be  attributed  the  sad  failures  of 
justice  more  than  to  any  other  cause. 

There  seems  to  be  a  principle  in  some  human  philosophy  finding 
expansion  in  the  legal  profession,  which  inculcates  the  idea  that 
quips  and  quiddities  belong  to  the  smart  and  successful  methods  of 
legal  warfare.  Men  of  strong  minds  will,  at  times,  avail  themselves 
of  their  supposed  advantages  on  slight  temptation.  If  a  pleading 
can  be  demurred  to,  it  will  not  be  otherwise  answered.  If  there  be 
incoherency  or  incorrectness  of  statement  by  one  party,  the  other, 
though  he  know  full  well  the  (fist  of  the  allegation  against  him,  will 
delay  the  cause  by  motions  to  make  the  pleading  more  definite  and 
certain ;  by  applications  to  strike  out  irrelevant  or  redundant  mat- 
ter, and  by  procedure  to  compel  an  adversary  to  elect  which  of  dif- 
ferent forms  of  pleading  shall  be  adopted.  Appeals  from  decisions 
on  such  applications  are  frequent ;  and  when  the  pleadings  ai'e 
finally  adjusted,  the  issue  must  awaij  its  delayed  rotation  on  the  cal- 
endar. 

Legal  controversies  should  not  be  dallied  with  in  such  a  dilatory 
manner.  Neither  technicality  nor  delay  should  stand  in  the  way  of 
a  speedy  trial.  The  machinery  of  practice  should  be  such  as  can 
be  worked  with  facility,  rapidity  and  certainty.  The  hearing 
should  not  be  deferred,  nor  the  decision  delayed,  until  the  remedy 
applied  is  too  late  to  ensure  substantial  justice.  It  is  important 
that  disputes  afiecting  property  should  be  determined  during  the 
decade  in  which  they  have  arisen.  Suitors  should  feel  assured  that 
neither  technical  intricacies  nor  delays  will  baffle  the  ends  of  justice. 

Now,  the  distinctive  peculiarity  of  the  Court  of  Arbitration  is, 
that  it  is  exempt  from  the  long  deplored  evils  of  technicality,  delay 
and  expense.  It  regards  the  merits  of  the  controversy,  and  gives 
no  opportunity  for  craftiness  or  trick  to  obscure  or  entangle  them 
with  cobwebs.  While  justice  is  administered  there  upon  the  same 
solid  principles  of  the  statutes  and  common  law,  that  are  obligatory 
in  all  courts,  it  is  done  without  the  perplexity  of  the  preliminary 
pleas,  or  of  dilatory  devices,  which  prevail  in  other  courts.  There 
16  no  delay  necessary  to  perfect  the  allegations  of  the  parties  before 
the  merits  can  be  heard.  Traditional  precedents  are  not  inquired 
about,  at  the  cost  of  time,  labor  and  money.  The  real  truth  of  the 
controversy  is  quickly  brought  to  view.  Questions  that  bear  no 
relation  to  the  actual  facts  are  put  aside.  The  controversy  can  be 
tried  without  subjecting  the  litigants  to  long  neglect  of  their  other 
businesp.      Preliminary    skirmishes,    that   raise  false   issues,    are 


16 

not  known ;  and  the  subject  of  dispute  is  not  perplexed  with  the 
meshes  of  erroneous  or  mistaken  pleadings.  Is  it  wonderful 
that  in  every  kingdom  and  country  where  such  courts  have  been 
established,  they  have  become  favorites  both  wilh  the  government 
and  the  people  ?  Or  that  history  records  of  the  institution  that  it 
is  everywhere  popular  and  beneficial  ? 

But  a  grand  work  has,  usually,  a  slow  beginning.  It  takes  time 
to  prepare  the  foundations;  and  if  the  merchants  of  New-York  in 
membership  with  the  Chamber  of  Commerce  had  not  possessed 
vast  sagacity,  unyielding  energy  and  powerful  influence,  they 
would  not  have  gained  so  great  a  distinction  as  the  honor  of  found- 
ing, on  so  secure  a  basis,  their  Court  of  Arbitration  for  the  Port  of 
New-York.  What  they  have  thus  achieved  is,  without  doubt,  a 
measure  of  present  utility ;  biit  its  rising  glory  will  only  be  fully 
seen,  when  the  mists  of  anomaly  have  passed  away,  and  the  work- 
ing of  the  court  shall  display  its  usefulness  and  advantage  to  the 
commercial  community.  It  will  then  be  ranked  among  the  cherished 
institutions  of  a  progressive  people. 

Should  not  the  merchants  of  New-York  have  their  commercial 
court  ready  of  access  for  any  emergency ;  and  should  it  not  be  one 
of  simple  and  sj^eedy  procedure  ?  They,  who  conduct  the  trade  of 
the  chief  emporium  on  the  Atlantic  seaboard  ?  They,  who  are  the 
nation's  source  of  influence  and  power  ;  who  supply  the  government 
with  revenue  and  the  country  with  imports  ;  who  pay  large  taxes 
and  keep  the  wheels  of  manufactories  in  motion ;  who  spread  the 
sails  of  their  commerce  on  every  sea ;  line  our  wharves  with  com- 
modious warehouses  ;  our  business  streets  with  costly  stores  and 
oiir  avenues  with  palatial  residences  ?  The  influence  they  wield, 
like  the  bow  of  Ulysses,  cannot  be  drawn  by  weaker  hands,  and 
the  dominion  to  which  they  aspire  is  to  bring  the  nations  of  the 
world  into  the  fraternal  relations  of  commerce  and  civilization.  No 
chapter  in  the  history  of  the  progress  of  the  American  nation  is 
moi-e  illuminated  with  the  spirit  of  patriotism  and  the  exploits  of 
peaceful  enterprise,  than  that  which  records  the  pre-eminent  success 
of  the  merchants  of  New-York.  As  the  needle  of  the  compass  that 
guides  their  ships  contributes  to  the  speed  and  security  of  the  voy- 
age, so  may  their  new  Court  of  Arbitration  contribute  to  the  onward 
course  of  commerce,  by  decisions  magnetized  with  the  loadstone  of 
justice,  and  by  a  readiness  and  efliciency  that  are  properly  responsive 
to  the  varying  exigencies  of  a  great  commercial  community. 


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